COURT FILE NO.: 1842/18
DATE: 20190909
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Enterprise Rent-A-Car Company o/a Alamo Rent-A-Car, Plaintiff
AND:
Tricia Richards, Defendant
BEFORE: Justice R. Raikes
COUNSEL: Michael A. Polvere, Counsel for the Plaintiff
Tricia Richards, Self-represented
HEARD: August 7, 2019
ENDORSEMENT
[1] The plaintiff moves for summary judgment. The plaintiff seeks damages of $35,311 as at October 19, 2017 for damage to a vehicle rented by the defendant.
[2] On April 28, 2017, the defendant entered into a rental agreement to rent a 2017 Dodge Caravan, Grand Crew passenger van from the plaintiff at its Calgary International Airport location. According to the rental agreement, Ms. Richards was to return the vehicle to the plaintiff’s location at the Winnipeg International Airport by 3 p.m. on May 2, 2017.
[3] As part of the rental agreement, Ms. Richards purchased the Optional Collision Damage Waiver. Ms. Richards was the “Renter” and the only authorized driver of the vehicle.
[4] The vehicle was involved in a motor vehicle accident on May 2, 2017. The vehicle left the highway, rolled and was significantly damaged as appears from photographs taken of the vehicle after the accident.
[5] Ms. Richards was not driving the vehicle when the accident occurred. It is undisputed that the driver was her son, Christopher, who was not an authorized driver under the rental agreement. At the time of the accident, Christopher’s licence was suspended. He was charged for driving without a licence.
[6] According to the affidavit sworn by Ms. Richards, she was driving with her son and a friend, Mitsy Blair. They had been on the road for approximately nine hours. She was extremely tired and did not feel that she could continue driving safely. She stopped at the only gas station for miles to get gas. When she came out from paying for the gas, she found Christopher sitting in the driver’s seat. He refused to get out of it.
[7] Ms. Richards was cold. She entered the vehicle and sat on the front passenger seat. She wanted to rest. The van was running to maintain heat in the vehicle. Ms. Richards deposed that she did not give Christopher permission to drive and did not have the slightest inkling that he would drive. At paras. 6-8 of her affidavit, she deposed:
By this time, without my permission, despite my urgings and my efforts to stop him from driving the car which was already on and get him out of the driver’s seat, he just ended up driving it back onto the highway.
At that time point, it was impossible for me to do anything further to stop him. I was really tired and could barely keep my eyes open. There was nothing I could do to stop the car without endangering both our lives. My son just wanted to continue going home because he had somewhere to be so he wanted to hurry up and get back home. I could not control him at that point.
Despite the fact that I told him that he should not drive, that we should stop the car, that he should allow me to rest and then recover enough to drive the car safely he continued to ignore me.
[8] Further, at para. 11, she deposes:
- In light of the fixed state of mind of my son at the time that he determined [sic] to drive the vehicle, my inability to physically prevent him from driving the car or get out of the driver’s seat, my concern was that if I attempted to physically stop him from driving it, there would either be an accident or he would resist my efforts to stop him from driving the vehicle and cause me to be in a situation of physical harm or danger. There was nothing I could do to prevent him from driving the vehicle and allow him to continue in the manner he did. I had absolutely no control of the situation and was wary that my safety was involved if I did anything further to frustrate him.
[9] Post-accident, Ms. Richards made two $400 payments to the plaintiff toward the damages claimed. She deposed that she did so because she was being harassed for payment.
Contract Terms
[10] The following relevant terms are found in the rental agreement:
- Limits on Use and Termination of Right to Use
a. Renter agrees to the following limits on use: (1) Vehicle shall not be driven by any person other than Renter, or AAD’s [Authorized Additional Driver(s)] without Owner’s prior written consent;… (11) Vehicle shall not be operated by anyone who has given a fictitious name, faults address, or a false or invalid drivers license; whose driver’s license becomes invalid during the Rental Period; who has obtained the keys without permission of Owner; or who misrepresents or withholds facts to/from Owner material to rental, use or operation of Vehicle;…
- Damage to, Loss or Theft of, Vehicle, Optional Accessories and Related Costs
Except to the extent restricted, modified or limited by Provincial law Renter accepts responsibility for damage to, loss or theft of, Vehicle, Optional Accessories or any part or accessory regardless of fault or negligence of Renter or any other person or act of God. Renter shall pay Owner the amount necessary to repair Vehicle or Optional Accessories. Renter shall not have Vehicle or Optional Accessories repaired without permission from Owner. If Vehicle is stolen and not recovered or Owner determines Vehicle is salvage, Renter shall pay Owner the fair market value less any sale proceeds.… For purposes of this Agreement, fair market value shall be the retail value of Vehicle immediately preceding the loss…. [Italics added.]
- Optional Collision Damage Waiver
COLLISON DAMAGE WAIVER (“CDW”) IS NOT INSURANCE. THE PURCHASE OF CDW IS OPTIONAL AND NOT REQUIRED IN ORDER TO RENT A VEHICLE. Renter may purchase optional CDW from Owner for additional fee. If Renter purchases CDW, Owner agrees, subject to the actions that invalidate CDW listed below, to contractually waive Renter’s responsibility for all or part of the cost of damage to, loss or theft of Vehicle, or any part of accessory and related costs regardless of fault or negligence depending on the CDW plan chosen. …
THE FOLLOWING SHALL INVALIDATE CDW:
A. If Vehicle is damaged when used or driven:
(1) by any person other than Renter or AAD(s) without Owner’s written consent;…
(7) under authority of any license that is suspended, revoked, invalid or does not belong to the driver;…
[11] It is Ms. Richards’ position that the Collision Damage Waiver was not invalidated when her son drove the vehicle without her permission and against her express wishes.
[12] It is the plaintiff’s position that the contract language is clear and unambiguous. Her permission or lack of permission for her son to drive is irrelevant. He was not an authorized driver. He also had a suspended license at the time of the accident. The waiver is invalidated regardless whether she consented to or objected to him driving.
Damages
[13] Following the collision, the plaintiff arranged for the van to be taken to an auto body repair shop to obtain an estimate of the cost to repair the vehicle. That estimate was obtained from CARSTAR on SASKATCHEWAN located in Winnipeg, Manitoba. The estimate provided indicates that the total cost to repair the vehicle was $82,830.88 inclusive of parts, labour, and HST.
[14] The estimate was attached as an exhibit to the affidavit of a law clerk in the office of plaintiff’s counsel. Ms. Richards objected to the affidavit being sworn by a law clerk with no knowledge of the background facts. She also took exception to the estimate. First, she noted that only one estimate was obtained. She also indicated that she was aware of numerous reports that CarStar had provided appraisal forms in other situations that were inaccurate or exaggerated. No details were provided to corroborate that bald assertion.
[15] A reply motion record was filed containing the affidavit of Ms. Eisener, the Group Risk Supervisor for Enterprise Rent-A-Car Canada Company Alberta Operations, in which she adopted the statements made in the affidavit of the law clerk. At para. 15, Ms. Eisener deposed that the estimate of the cost to repair the vehicle was done by John Mallatratt, an appraiser at CARSTAR in Winnipeg. No affidavit was filed by Mr. Mallatratt on this motion.
[16] The plaintiff also obtained an estimate of the value of the vehicle as at the date of the collision through Audatex. That evaluation is attached as exhibit E to the affidavit of the law clerk. No affidavit was filed by anyone from Audatex.
[17] Ms. Eisener deposed that when the plaintiff is calculating damages, it gives the renter the lower of the values attributed to the vehicle; viz. the lesser of the value of the vehicle if new and the value as driven. Because the estimated cost of repair was so much, the plaintiff concluded that the vehicle was unsalvageable. Accordingly, the plaintiff selected the lesser replacement value from the Audatex report – $35,863.
[18] The damages claimed are that amount less the $800 paid by Ms. Richards.
Analysis
[19] Summary judgment motions are governed by r. 20.04 which states:
(2) The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;…
(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence
Evaluating the credibility of a deponent
Drawing any reasonable inference from the evidence.
(2.2) A judge may, for the purposes of exercising any of the powers set out in subrule (2.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation.
[20] The leading case on summary judgment is Hryniak v. Mauldin, 2014 SCC 7. At para. 66, Karakatsanis J. for the court wrote:
On the motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[22] Thus, the judge hearing the summary judgment motion must ask:
On the basis of the evidentiary record alone, are there genuine issues that require a trial?
Does the evidentiary record provide the evidence needed to “fairly and justly adjudicate the dispute”?
[23] In Hryniak, the test for summary judgment was stated at para. 49 as follows:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[24] The onus of establishing that there is no genuine issue requiring a trial rests on the moving party. Where the moving party establishes that there is no genuine issue requiring a trial, the onus shifts to the responding party to establish that there is a genuine issue requiring a trial: Sweda Farms Ltd. v. L.H. Gray & Son Ltd., 2014 CarswellOnt 11926 (ON CA) at para. 26; New Solutions Extrusion Corp. v. Gauthier, 2010 ONSC CarswellOnt 913 at para. 12; Bhakhri v. Valentim, 2012 ONSC 2817 at para. 7.
[25] A responding party must set out in affidavit material or other evidence the specific facts that establish that there is a genuine issue requiring a trial. The responding party cannot rest on mere denials of allegations of a party’s pleading: Sweda, para. 27 (See also John Deere Financial Inc. v. 1232291 Ontario Inc. (c.o.b. Northern Haul Contracting), [2015] O.J. No. 6503 (S.C.J.) at para14; O’Laughlin v. Byers, [2014] O.J. No. 4221 (S.C.J.) at para. 40, upheld [2015] O.J. No. 1559 (C.A.). It is not enough to allude to evidence that may be adduced in the future.
[26] The judge hearing the motion must:
Determine the motion on the pleadings and evidence actually before the court on the motion. The judge is entitled to assume that the record contains all the evidence that would be adduced at trial; and
Take a hard look at the evidence and the merits of the action at this preliminary stage: Sweda, paras. 26-28.
[21] Where partial summary judgment is contemplated, the motion judge must assess the advisability of the summary judgment process in the context of the litigation as a whole: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at paras. 35. The motion judge must consider whether the factual findings necessary to determine the motion are so intertwined with the remaining issues that those determinations on the motion risk inconsistent findings later and substantive injustice: Baywood Homes Partnership, para. 37. Given what remains to be determined, it may be more fair, efficient and just for those findings to be made once in the context of the trial.
[22] The first issue is whether there is a genuine issue requiring a trial as to Ms. Richards’ obligation to pay for the damage the vehicle sustained while she was renting it. Put differently, did the Collision Damage Waiver apply to relieve her of the obligation to pay?
[23] The rental agreement makes the Renter liable to the Owner to pay for damage sustained by a rented vehicle regardless how that damage occurred. This obligation is clearly expressed in article 6 of the rental agreement. It does not matter whether Ms. Richards did everything she could to get her son to pull the vehicle over to let her drive or not. By renting, she accepted full responsibility for damage to the vehicle “regardless of fault or negligence of Renter or any other person”.
[24] The rental agreement provides, however, that the Owner (plaintiff) waives its right to have the Renter (Ms. Richards) pay for that damage if the Renter purchased the Collision Damage Waiver and did not invalidate the waiver by any of the acts listed in article 16. It is undisputed that Christopher was not an Additional Authorized Driver as defined in the agreement. Moreover, he could not have been because his licence was suspended at the time. That fact – his licence was suspended – means he was not entitled by law to drive the rented vehicle or any vehicle, and it does not matter that Ms. Richards was unaware of the suspension.
[25] The evidence is clear that the plaintiff did not consent in writing to Christopher driving the van. Ms. Richards’ evidence and her submissions focus on whether she, not the plaintiff, gave Christopher permission to drive the van. With respect, the agreement expressly says that the waiver is invalidated if someone other than the Renter or Additional Authorized Driver drives the vehicle without the Owner’s written consent. Once Christopher got behind the wheel of the van and put it in gear, the waiver was invalidated. That is so whether he had Ms. Richards’ permission or not.
[26] I am satisfied that there is no genuine issue requiring a trial regarding liability to pay under the rental agreement. Ms. Richards is liable to pay per the rental agreement. The Collision Damage Waiver was invalidated and offers no protection.
[27] The next issue is the quantum of the damages payable. In its factum, the plaintiff characterized the damages as liquidated damages – a debt owing. I disagree. The mere fact that the obligation to pay for damage to the vehicle arises by contract does not mean that the damages are liquidated.
[28] I agree with the submission made by plaintiff’s counsel that the assertion by Ms. Richards’ that CARSTAR cannot be relied upon because she has read of stories indicating that CARSTAR’s estimates are inaccurate or exaggerated is a bald allegation. No corroborative evidence is provided specific to this CARSTAR and the person who performed the estimate on the van in question. No details of any kind are provided. It amounts to little more than “I heard you can’t trust them”.
[29] I am, however, troubled by the manner by which the plaintiff seeks to prove the amount payable by Ms. Richards. It attaches an estimate of the cost of repair and an estimate of the value of the vehicle as exhibits to a law clerk’s affidavit. No affidavits are filed by the authors of those documents. The information being provided is opinion evidence. No expert reports are filed. No Form 53 is completed. There is no meaningful way to cross-examine and challenge the authors of the two exhibits.
[30] The rental agreement provides that if the vehicle is not salvageable, the Renter must pay the fair market value. It does state how fair market value is to be ascertained.
[31] What work is necessary to repair the vehicle and how much that will cost is clearly in the realm of expert opinion evidence. What the value of the vehicle was on the date of the accident is likewise clearly classic opinion evidence. That evidence cannot be put before the court as an exhibit to a law clerk’s affidavit with none of the required badges for admissibility of expert evidence in place.
[32] I also note that the rental agreement requires the Renter to be given a credit for the sale proceeds if the owner determines that the vehicle is salvage. No evidence is provided as to those sale proceeds. If disposed of as scrap, presumably there was some amount recovered. The affidavits do not address that issue.
[33] In the circumstances, I am not satisfied that the evidence filed is sufficient to allow me to fairly and justly adjudicate the amount in dispute. Accordingly, I find that Ms. Richards is liable to pay under the terms of the rental agreement but the amount payable should be assessed on full and proper evidence. A hearing for an assessment of damages is required.
[34] I am not seized of that hearing.
[35] The costs of the summary judgment motion are reserved to the judge hearing the assessment of damages.
“Justice R. Raikes”
Justice R. Raikes
Date: September 9, 2019